OTTAWA — In a move that puts it offside with many feminist activists, the Liberal government has rejected Senate amendments to a bill that would have established a guide for courts on defining when a person is incapable of consenting to sexual activity.

The amendments were rejected in the Commons Monday in a vote of 240 to 35. The Liberals and Conservatives both voted against the amendments, with the NDP in favour.

Bill C-51 amends the Criminal Code to clarify that an unconscious person can never be found to have consented to sexual activity. Activists argued this risked having judges rule — as they already occasionally do — that anything less than unconsciousness means a person is still capable of consenting. They urged the bill be amended to replace the “unconscious” provision with one that gives judges a more comprehensive test to apply for when a person is too incapacitated to consent.

Sen. Kim Pate, who introduced the amendments, said she was disappointed with their defeat in the House given that Liberals and Conservatives had recently supported a private member’s bill from former Conservative MP Rona Ambrose to mandate training for judges on sexual assault cases.

“I find the response of the government and opposition to the Senate’s amendments all the more surprising and perplexing,” she said in an email Tuesday, pointing to a lineup of women’s advocates, feminist academics and rape crisis centres that backed the changes.

The government argued Pate’s amendments needed more study and went much further than what the bill was intended to address, which was a specific case dealing with an unconscious woman.

“I agree that courts could benefit from guidance in making determinations on a complainant’s incapacity to consent when she or he is conscious,” Justice Minister Jody Wilson-Raybould told the House when introducing a motion to reject the amendments. But she said the changes needed to be crafted more carefully to ensure they didn’t cause problems in the courts.

“In short, the proposed changes are well-intentioned, but will not achieve their aim and, in fact, carry great risk of unintended consequences in what is a difficult yet critical area of law,” she said. “Sexual assault law is too important to leave any room for error. If the definition of incapacity is to be provided, it is imperative we get it right.”

Tuesday, the Senate voted to pass the House’s version of Bill C-51, without the Senate amendments. Introduced by Wilson-Raybould in June 2017, the bill includes a batch of reforms to sexual assault laws, in part to codify recent Supreme Court of Canada decisions.

One of those cases is R. v. J.A., which saw the legal system grapple with whether a woman can give advance consent to being unconscious during sexual activity (the case involved choking that caused her to briefly pass out). The Supreme Court of Canada overturned an Ontario Court of Appeal decision, and ruled that an unconscious person is never capable consenting to sexual activity, even in advance.

A clause in Bill C-51 thus amends the Criminal Code to explicitly say that a person cannot consent if they’re unconscious, or if they’re incapable of giving consent “for any reason other than” being unconscious.

But women’s groups argued this creates a danger of setting the legal threshold for consent too high. Karen Segal, a lawyer with the Women’s Legal Education and Action Fund, argued in testimony to MPs that the change would create a “bright line” on consent that could have unintended repercussions.

“The provision adds nothing new to the law of sexual assault, which has long held that unconscious women cannot consent to sexual contact, and risks opening the law of incapacity to being defined by unconsciousness as opposed to by an individual’s ability to provide informed and voluntary consent,” she said.

The House of Commons ultimately voted to keep the unconsciousness provision, but the argument found more support in the Senate.

During third-reading debate, Pate introduced amendments to replace the unconsciousness provision with a “guide” of three factors judges would have to consider when ruling on consent: the nature of the sexual activity, the risks and benefits involved in the attendant circumstances, and the ability to say “no,” as well as the capacity to communicate consent by words or conduct. The Senate passed the amendments on Oct. 30.

Although the government quickly signalled it would reject Pate’s changes, over the past month a group of law professors and women’s advocates urged it to change its mind.

“This government has repeatedly made much of its commitment to feminism,” said a column in the online magazine Policy Options signed by Segal and law professors Elizabeth Sheehy and Isabel Grant. “Yet it is poised to reject an amendment that is widely supported by feminist activists and academics across this country, as well as organizations tasked with providing services to victims of sexual violence.”

Speaking to the National Post Tuesday, Pate pointed to an Alberta Court of Appeal case in November that overturned a trial judge’s conclusion that a woman who had taken pills and alcohol could still consent because she was conscious.

“The trial judge’s decision demonstrates the very error, fed by harmful stereotypes about victims of sexual assault, that many of us are concerned the original wording of Bill C-51 risks encouraging,” she said.

However, Pate is hopeful that the government will follow through on its promise to study the issue, and said some advocates have been told the government intends to start consultations early next year.

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